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Landowners Can Challenge ‘Waters Of The United States’ Rulings In Federal Court

Posted on June 16, 2016

By Andrew Burger, Legal NewsLine

The U.S. Supreme Court recently constrained the ability of the U.S. Environmental Protection Agency and Army Corps of Engineers to invoke the Clean Water Act (CWA) and designate bodies of water on private and public lands as “Waters of the United States.”

In Hawkes Co. v. U.S. Army Corps of Engineers, the eight Supreme Court justices voted unanimously in favor of the plaintiffs, ruling that Hawkes, a company that harvests peat on land it owns in Minnesota, has the right to challenge the EPA and Army Corps’ WOTUS designation in federal courts under the Administrative Procedure Act.

Three federal appeals courts could not agree on a ruling on the issue, which was centered on the question of whether a non-binding jurisdictional determination – the EPA and/or Army Corps designating a body of water as WOTUS – was a ¨final agency action¨ that could be challenged in federal courts.

The U.S. District Court for the District of Minnesota ruled in favor of the Army Corps, ruling that its non-binding determination of jurisdiction could not be challenged in federal courts. The U.S. Court of Appeals for the Eighth Circuit in April 2015 disagreed, ruling that Army Corps’ finding was indeed a final agency action and could be challenged.

“EPA is reviewing the decision with the Department of Justic and the Army Corps of Engineers,” the agency told Legal Newsline in an emailed statement, adding that “this decision does not affect the Clean Water Rule or scope of the Clean Water Act jurisdiction.”

It does, however, check the EPA’s and Army Corps’ abilities to invoke the CWA and designate water bodies as WOTUS, which strictly limits and exerts agency jurisdiction regarding landowners´ land and water use.

The Supreme Court’s decision opens the door for millions of landowners to challenge similar EPA and Army Corps actions across the nation.

“This is the first time in 40 years landowners have the right to hold federal officials accountable under the Clean Water Act,” Pacific Legal Foundation (PLF) principal attorney M. Reed Hopper told Legal Newsline.

Hopper and his PLF team have represented Hawkes as the case wended its way up to the Supreme Court.

“I hope EPA and Army Corps officials will be more conscientious,” Hopper said. “Now that their decisions may be subject to suit, they may be more forthcoming and restrain themselves in asserting control over private as well as public lands under the Clean Water Act.”

Hawkes’ challenge revolved around existing law, Hopper elaborated.

“Under CWA, the Army Corps and EPA can regulate activities in any area they designate a ‘Water of the United States,'” Hopper said. “Hawkes is a company that owns peat bogs in Minnesota and they wanted to harvest peat moss for landscaping.

“The Corps said the land was subject to federal regulation under CWA in that it qualified as a significant nexus to a navigable downstream waterway.

“Agency officials simply walk on your land and declare WOTUS, which means landowners need a federal permit to alter or make use of the land. It’s the equivalent of ‘federalizing’ property, and without having to provide any proof or prospect of being held accountable in a court of law. The Supreme Court unanimously agreed that landowners do have the right to contest the agencies claim of federal jurisdiction.”

The EPA and Army Corps have been overreaching the limits of their authority under the CWA for many years, Hopper said.

“¨The problem is that the agency has been ignoring Supreme Court decisions that have delineated the scope of authority under the CWA for decades – in 2001, 2006, 2012 and now in 2016,” he said. “They just keep going on as if nothing had happened.”

Source: Legal NewsLine

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